VOL. 3 2015 VOL. 3 2015 C O N T E N T S I. Corporate & - - PDF document

• VOL. 3 • 2015

• VOL. 3 • 2015
• I. Corporate & Finance
• 1. International Transactions

Gibbons P.C. Attention, Sellers of Goods on Credit: A “Retention of Title” (Eigentumsvorbehalt) is Not Sufficient Under U.S. Law, and the U.S. Equivalent is Changing .....................................3 SGK Simon Gluck&Kane LLP FDA’s Recent Supplemental Proposed Rule Focuses on Added Sugars ..................................5 Wuersch&Gering LLP Using a Delaware Limited Liability Company (LLC) to Structure an International Joint Venture has Gained Considerable Advantage with the Arrival of the Delaware Rapid Arbitration Act .........................7

• II. International IP/Trademarks

Vonnemann Kloiber&Kollegen “It´s the little differences” – Comparison of CTM and German Trademarks in litigation cases ............................. 9

• III. Immigration Law
• 1. Others: Renunciation
• f U.S. citizenship

Hodgson Russ LLP The “Reed Amendment” and Admissibility to the United States: Will I Be Barred From Reentry After Renunciation? ......................... 11

• VI. Litigation and Arbitration
• 1. International Litigation
• v. Einem&Partner

Alter Egos in International Litigation ....................................... 14

• V. Real Estate
• 1. Development and Land Use

GÖRG Real Estate Project Developments: Everybody wins .............................. 16

• 2. Real Estate Transactions

Aulinger Rechtsanwälte|Notare Hereditary Building Rights in Germany – a historical vehicle as a modern solution for real estate investments ....................18

• VI. Tax
• 1. International Tax

AugustinPartners LLC Foreign Corporations Owned by U.S. Taxpayers – Form 5471 ..........20 Deloitte Tax LLP The unfinished U.S. tax reform .........22

C O N T E N T S

• VOL. 3 • 2015

3

Attention, Sellers of Goods on Credit: A “Retention of Title” (Eigentumsvorbehalt) is Not Sufficient Under U.S. Law, and the U.S. Equivalent is Changing

When a company sells goods on credit in Germany, it usually retains title in the goods until payment has been made in full (Eigentumsvorbehalt). But, when a German company sells goods on credit to a buyer in the U.S., it cannot assume that it will be protected in the same manner. Rather, if the German seller ships goods to the buyer in the U.S. before full payment has been made, it runs the risk of losing title to the goods if the buyer becomes insolvent. The law in the U.S. does not recognize a retention of title as a matter

• f course – rather, the seller must take certain affirmative steps to protect itself before

shipping its goods to the buyer. The precise requirements of the protection are a matter

• f state law, and the state of New Jersey recently issued a noteworthy amendment to its

law on this issue.

The Law in the U.S.

In the U.S., sellers of goods on credit can obtain a security interest in the sold goods under Article 9 of the Uniform Commercial Code (UCC). A version of Article 9 of the UCC has been adopted in all 50 states and Washington, DC; however, there are some differences among the jurisdictions. A security interest under Article 9 of the UCC requires two things – “attachment” and “perfection.” One method of satisfying a critical element of “attachment” is to have express language in a written contract between the seller and the buyer granting the security interest. Perfection of a lien on goods may be accomplished with the filing of a Form UCC-1 financing statement, generally with the Secretary of State of the state where the buyer entity is incorporated or organized. Filed financing statements are publically available, survive for an initial period of five years, and can thereafter be renewed. In general, a secured party will conduct a UCC lien search to determine whether there are existing perfected security interests filed against the debtor with regard to the collateral in question. This is important, as, between competing security interests in the same collateral, “first to file” usually governs the priority of the security interests. However, a seller of goods on credit can also obtain a purchase money security interest (PMSI), which provides a higher priority interest over competing creditors in the same collateral, even if the other creditors’ competing security interests were recorded first. Simply put, a PMSI is a super priority security interest in goods in favor of the creditor who has financed the purchase price of the goods.

Marius C. Scherb Referendar* Gibbons P.C. One Pennsylvania Plaza, 37th Floor New York, NY 10119 T +1 (212) 613 2000 F +1 (212) 554 9671 www.gibbonslaw.com Brian DiBenedetto, Esq. Director D +1 (212) 613 2033 bdibenedetto@gibbonslaw.com

• VOL. 3 • 2015

4

Attention, Sellers of Goods on Credit: A “Retention of Title” (Eigentumsvorbehalt) is Not Sufficient Under U.S. Law, and the U.S. Equivalent is Changing

The requirements to obtain a PMSI differ depending on whether the security interest is in “inventory” or “equipment.” For example, a PMSI in inventory requires, without limitation, notification to the holders of conflicting security interests prior to delivery of the goods. In contrast, a PMSI in equipment must merely be filed within 20 days after the transfer of the goods to be perfected, without any such notice requirement. Inventory under Article 9 of the UCC refers to specific goods purchased for resale or further processing, whereas any other goods generally are deemed to be equipment.

Recent Changes in New Jersey

Although Article 9 of the UCC is largely the same throughout the different jurisdictions, a recent change in New Jersey is worth noting. Specifically, New Jersey adopted a change to Article 9 of its UCC to address fraudulent UCC and lien filings being made against judges and court personnel. There are two primary changes that may impact how liens are perfected in New Jersey. The first change arguably requires a secured party or representative to use its proper legal name or a filed (in New Jersey) trade name on the Form UCC-1 (as opposed to an unfiled trade name or DBA). The second change alters the requirements for the indication of the collateral in N.J.S.A. § 12A:9-502(a)(3). Under the new law, the Form UCC-1 must indicate not only the collateral covered by the security interest, but also that “the collateral is within the scope of this chapter.”

Conclusion

Similar to a retention of title in Germany, a filed security interest or PMSI pursuant to Article 9 of the UCC is an effective means of creditor protection. However, a seller must ensure that it complies with the requirements of Article 9 of the UCC in the relevant U.S. jurisdiction.

* Marius Scherb, a Referendar with Gibbons P.C. (while in the process of taking the German Bar Examination) at the time this article was authored. Brian DiBenedetto, Esq. Director D +1 (212) 613 2033 bdibenedetto@gibbonslaw.com Marius C. Scherb Referendar* Gibbons P.C. One Pennsylvania Plaza, 37th Floor New York, NY 10119 T +1 (212) 613 2000 F +1 (212) 554 9671 www.gibbonslaw.com